First Nat. Bank v. Southern Sur. Co.

• Citation: 161 P. 539,61 Okla. 308,1916 OK 986
• Decision Date: 28 November 1916
• Docket Number: 7650.
• Parties: FIRST NAT. BANK OF EUFAULA v. SOUTHERN SURETY CO.
• Court: Supreme Court of Oklahoma

161 P. 539

61 Okla. 308, 1916 OK 986

FIRST NAT. BANK OF EUFAULA v. SOUTHERN SURETY CO.

No. 7650.

Supreme Court of Oklahoma

November 28, 1916

Syllabus by the Court.

A person loaning money to a contractor to pay for labor and material furnished to such contractor is not protected by the provisions of a bond executed in conformity to section 3881 Revised Laws of 1910.

Commissioners' Opinion, Division No. 3. Error from Superior Court, Muskogee County; H. C. Thurman, Judge.

Action by the First National Bank of Eufaula against the Southern Surety Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Turner & Turner and Carl W. Gust, all of Eufaula, for plaintiff in error.

William T. Hutchings, of Muskogee, and Stanard, Wahl & Ennis, of Shawnee, for defendant in error.

HOOKER C.

Section 3881, Revised Laws of 1910, is:

"Whenever any public officer shall, under the laws of the state, enter into contract in any sum exceeding one hundred dollars, with any person or persons, for purpose of making any public improvements, or constructing any public buildings or making repairs on the same, such officer shall take from the party contracted with, a bond with good and sufficient sureties to the state of Oklahoma, in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in making said public improvements."

It appears from the facts here that on or about the 3d day of January, 1913, the Nick Peay Construction Company entered into a written contract with the city of Eufaula to make certain public improvements therein, and in order to secure the performance of its contract it did on said day execute a bond to the city of Eufaula with the Southern Surety Company as its surety, whereby it was obligated that the Nick Peay Construction Company shall well and truly pay all indebtedness incurred for any and all labor and material furnished in the construction of said extension in the performance of said contract, then this obligation to be null and void; otherwise to remain in full force and effect.

It is alleged in the petition in this case that the First National Bank of Eufaula loaned to the Nick Peay Construction Company the sums of money sued for herein to enable it to pay for the labor and for the material used by it in the construction of said municipal improvements, and that money thus furnished by the bank to said company was actually used by the company in the work embraced in the contract and covered by the conditions of the bond, and by reason of the failure of the company to pay the bank said money it is sought here by the bank to make the Southern Surety Company...